Fourth Circuit Upholds Injunction on Muslim Ban 2.0

On Thursday, May 25th, Attorney General Jeff Sessions announced that he would seek a Supreme Court review of the decision by the United States Court of Appeals for the Fourth Circuit that kept in place an injunction against the latest Muslim Travel Ban. This order prevents implementation of an executive order issued by President Trump in March. Sessions said in a press statement that “This Department of Justice will continue to vigorously defend the power and duty of the Executive Branch to protect the people of this country from danger, and will seek review of this case in the United States Supreme Court.”

The Fourth Circuit delivered a divided decision on the constitutionality of the ban. The court voted 10-3 in favor of retaining a modified injunction blocking the Muslim ban.

Chief Judge Roger Gregory, writing for the majority in scathing language, said that while the Justice Department claimed the ban was religiously neutral, it “drips with religious intolerance, animus, and discrimination,” violating “one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.” In enacting the ban, the court said, not only were Muslims traveling to the United States harmed, but Muslim Americans living in the United States were subjected to “marginalization and exclusion.”

Examining the record of many anti-Muslim statements from the President, Chief Judge Gregory said that there was a “compelling case” that the ban’s “primary purpose is religious.” While the Justice Department’s lawyers claimed that the second travel ban was not aimed at a religious group, the judge pointed to statements by Trump and his advisors where they contradicted that claim. Chief Justice Gregory wrote that “after courts enjoined [the first travel ban], the statements show how President Trump attempted to preserve its core mission: by issuing [a second travel ban]—a ‘watered down’ version with ‘the same basic policy outcomes.’ … They are explicit statements of purpose and are attributable either to President Trump directly or to his advisors. We need not probe anyone’s heart of hearts to discover the purpose of [the travel ban], for President Trump and his aides have explained it on numerous occasions and in no uncertain terms.”

While the Trump administration has made many statements on the Muslim ban, Gregory wrote that the Justice Department wanted the court “to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers.” The court would “decline to do so,” Gregory wrote, not only because it is the “particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.”

The court said that the neutral language of the Muslim ban “cannot be divorced from the cohesive narrative linking it to the animus that inspired it.”

Patrick Young blogs daily for Long Island Wins. He is Director of Legal Services at CARECEN and Special Professor of Immigration Law at Hofstra University. Pat is also a student of immigration history and the author of The Immigrants' Civil War.

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